A Filipina fighting to remain in Hong Kong to be with her underage daughter who holds
permanent resident status here has elevated her battle to the Court of Appeal.
Milagros Tecson Comilang, a former domestic helper, has appealed a decision of the Court
of First Instance rejecting her challenge to the Director of Immigration's repeated refusal to extend
her permission to stay in the territory.
The Court of Appeal has reserved its judgment after hearing arguments on Apr. 16.
The lower court ruling, which was handed down in June last year, also denied
Comilang's petition for a judicial review of the Commissioner of Registration's rejection of her application for
a Hong Kong permanent identity card.
The outcome of the case could have serious implications for all Filipino children who have
been granted right of abode, but whose parents do not share this status. Such is the case of about
two dozen children of Filipino domestic workers who were granted permanent residency about three
to four years ago.
At the appeal hearing, Comilang's counsel, Gladys Li, SC, described the legal proceeding
before Justices Peter Cheung, Frank Stock and Joseph Paul Fok as a special case involving a child who
is underage, a minority and who requires the constant presence of a parent.
Comilang first came to the city in 1997. Shortly after her last contract was terminated on
July 13, 2005, she underwent an Islamic marriage with a certain Shaker Ahmed, a Hong Kong
permanent resident. She subsequently applied for a change of her immigration status to remain in the city as
a dependant of her husband.
Pending the processing of her application, the Director of Immigration did not
extend Comilang's permission to stay, which expired on Oct. 10, 2005.
Then, in February 2006, the already overstaying Comilang gave birth to Zahrah Ahmed,
who acquired permanent resident status through her father and by virtue of her being born in Hong Kong.
Ahmed, the husband, was subsequently discovered to be in a subsisting marriage at the time
he married Comilang. He later withdrew his sponsorship of the Filipina's change of status application.
Since then, Comilang has resisted several orders for her leave so she could stay with her
daughter, whom she wants to remain in the territory to enjoy her rights as a permanent resident. The child
is a co-applicant in the case.
While recognizing the state's right to control who stays in Hong Kong, Li argued that the
immigration department should allow a custodial parent the right to stay in the interest of the child.
The Court, warned Li, should consider the impact of their decision because, in
compelling Comilang to leave, the child essentially loses her right of abode.
Li also questioned the fairness of allowing unmarried children below 18 years of age to
be dependants of parents, and yet denying the same right to a resident child and her parent.
On the other hand, Anderson Shek, counsel for the Director of Immigration, wanted the
Court to clarify what a child's right of abode entailed.
"To what extent can (the child's right of abode) be relied upon (by) the mother (who has)
no right of abode?" asked Shek.
Foreign nationals are allowed to sponsor their relatives as dependants. In exceptional cases,
the Director of Immigration also has the discretion to allow other foreign nationals to stay in Hong
Kong on humanitarian and compassionate grounds.
However, in the appealed 50-page judgment, Presiding Justice Johnson Lam had stated that
the courts will not lightly interfere with the Director's exercise of discretion and that
"humanitarian considerations are not reviewable in courts" (Lau Kong Yung vs Director Immigration ).
Judge Lam also ruled that it was not necessary for the court to come to any conclusion on
the impact of the refusal of Tecson's extension of stay on the future of Zahrah Ahmed.
He further rejected the argument that Comilang needed to leave Hong Kong with her
daughter, simply because she had custody of the child.
"The Family Court has jurisdiction to reconsider the question of custody when (Comilang) has
to leave Hong Kong. One option is to grant custody to the father. Another option is to grant leave
to relocation. It is entirely a matter for the Family Court to decide in view of the prevailing
circumstances and the best interest of the child," said Justice Lam.